0120110385
10-15-2012
Virginia Barker, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Virginia Barker,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120110385
Agency No. HHS-IHS-0433-2010
DECISION
On October 13, 2010, Complainant filed an appeal with the Equal Employment Opportunity Commission, Office of Federal Operations (OFO), regarding a decision she received concerning her complaint of discrimination filed with the Department of Health & Human Services (Agency). Complainant only filed the Notice of Appeal form indicating the Agency Number associated with her complaint. Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal.
In response to the appeal, by letter dated November 8, 2010, OFO notified the Agency of the filing and that it was required to submit a copy of the complaint file within thirty (30) calendar days of the Agency's receipt of the letter of notification. The November 8, 2010 letter advised the Agency that failure to submit the complaint file within the specified time frame could result in the Commission drawing an adverse inference.
The Agency failed to respond and/or submit the complaint file. OFO subsequently contacted the Agency by electronic mail and again requested the complaint file for this case and warned that failure to do so could result in the issuance of sanctions.
On September 10, 2012,1 EEOC issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed to the Agency. In the Notice, pursuant to 29 C.F.R. � 1614.404(c), the Commission ordered the Agency to show good cause why it has not submitted the complaint file in this matter. The Commission also notified the Agency that if it failed to submit the entire record (including, but is not limited to, the EEO Counselor's Report, the formal complaint, the Report of Investigation, any Orders by an AJ, and any documents or motions submitted by either party once this case was before an AJ) within twenty (20) days or show good cause why it cannot do so, OFO could: (1) draw an adverse inference that the requested information would have reflected unfavorably on the Agency; (2) consider the matters to which the requested information pertains to be established in favor of the Complainant; (3) issue a decision fully or partially in favor of the Complainant; or 4) take such other action(s) as appropriate.
The Show Cause Order contained a Certificate of Mailing dated September 10, 2012, notifying the Agency that EEOC would presume it received the Notice within five calendar days after it was mailed. Applying this presumption, we assume the Agency received the Show Cause Order by mail on September 15, 2012, which would have required the Agency to provide the file to EEOC/OFO by no later than October 5, 2012. The Agency again failed to submit the complaint file to EEOC by that date.
On October 11, 2012, six days late and without explanation, the Agency finally submitted a copy of the 82-page complaint record.
The record shows that Complainant was employed by the Agency as a supervisor in the medical imaging department at the Fort Defiance Indian Hospital in Arizona. She filed a formal EEO complaint with the Agency on September 8, 2010, alleging discrimination on the bases of race (Native American) and national origin (Navajo) when she was subjected to ongoing harassment, including the issuance of an unsuccessful performance appraisal in February 2010, by her manager. Complainant further alleged that the harassment culminated in being placed on administrative leave and forced to leave her job site. There is a suggestion in the record, although not clear, that Complainant's employment was subsequently terminated.
The Agency issued a final decision on September 14, 2012, dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), finding that the complaint was filed in an untimely manner. The Agency reasoned that Complainant received the notice of right to file a complaint on August 17, 2010, and filed her formal complaint on September 8, 2010,
As noted above, EEOC has been requesting a copy of the complaint file from the Agency since November 2010. The Agency failed to respond in any way to these requests. As such, the Commission issued its Notice to Show Cause in September 2012. The Agency again failed to provide the complaint file in a timely manner in response to this Notice or provide an explanation for the continued delay. The Agency finally provided EEOC with the complaint file on October 11, 2012, beyond the time frame required by the Notice and without providing any explanation for failing to submit the complaint file to EEOC for nearly two years from our initial request.
Based on these facts, we find it appropriate to sanction the Agency for failing to provide the the complaint file despite numerous attempts by the Commission to obtain the record. The Notice to Show Cause warned that EEOC could: (1) draw an adverse inference that the requested information would have reflected unfavorably on the Agency; (2) consider the matters to which the requested information pertains to be established in favor of the Complainant; (3) issue a decision fully or partially in favor of the Complainant; or (4) take such other action(s) as appropriate. Upon review, as a sanction, we issue a decision in favor of Complainant reversing the Agency's procedural dismissal of her complaint.
Accordingly, we REVERSE the Agency's final decision dismissing the complaint and REMAND the matter for further processing, including an expedited investigation, in accordance with the Order below.
ORDER
The Agency is ordered to process the remanded claims (ongoing harassment/removal from work site/possible removal) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within five (5) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 15, 2012
__________________
Date
1 We note that we sent an earlier Notice to Show Cause to the Agency in January 2012. However, because of subsequent concerns about a change in the Agency's relevant address, we chose to reissue the Notice to the updated address.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110385
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110385